PARTIES OPPOSE BID TO HAVE THREE JUDGES TO HEAR MUMIAS LEASE DISPUTE.

BY SAM ALFAN.

Gakwamba Farmers has opposed an application by Mumias Outgrowers Company (Moco) seeking the appointment of three judges to determine a petition challenging the lease of Mumias Company to Sarrai Group. 

The society through its chairman Elisha Huma says that the said application is an attempt or a concerted effort by a rival group of farmers, to delay the conclusion of the case, which had been set for hearing.

Their lawyer Danstan Omari wondered why Moco never made the application before Justice Alfred Mabeya set the matter for hearing.

“The application is not made in good faith and is an attempt by the Plaintiffs to continue enjoying interim orders at the detriment of the Defendants/Respondents and scores of very many other Kenyans that rely on the operationalization of Mumias Sugar Company Limited,” he said.

The farmers added that the operationalization of Mumias Sugar Company would benefit the residents of Kakamega and sugarcane farmers in the region, as well other commercial interests in the Country.

According to the farmers, the issues raised in the petition are not substantial issues of law requiring hearing by an uneven number of judges pursuant to provisions of Article 165 (4) of the constitution of Kenya 2010.  

“Mumias Outgrowers application for this present matter does not satisfy the constitutional criteria for determination by a bench composed of numerically superior judges and no right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened,” Omari submitted. 

Gakwamba Farmers further says Mumias Outgrowers has not demonstrated that the issues raised in Notice of Motion application dated January 11,2022 are uncertain in law and thus requiring an uneven number of judges.

“The issues raised by the Plaintiffs in this case do not fall within Article 165 (3) (b) or (d) of the Constitution as they are matters touching on the powers and duties of an Administrator and/or an Official Receiver which are matters dealt occasionally by this Court”, adds the farmers. 

The court heard that Moco has not demonstrated that the issue before Justice Mabeya touches on interpretation of the Constitution and no party has challenged or sought a second opinion of the decision by the Judge in November 2021 allowing KCB appointed receiver manager to lease Mumias assets.

Senior Counsel Kiragu Kimani told the court that the case was a commercial dispute and had nothing to do with the interpretation of the constitution.

“I verily believe that if the plaintiffs intended to raise any questions of violation of rights or constitutional interpretation, they would have filed a constitutional petition in the Constitutional and Human Rights Division of this court,” Mr Rao said in an affidavit.

Senior counsel James Orengo and Paul Muite of Kakamega county and West Kenya respectively, also opposed the application.

Through lawyer Maureen Odeck, Moco said the case raises substantial questions of law and of great public concerns to warrant the empanelment of a bench of more than three judges, to determine the case.

She said it was prudent to shield the court from undue pressure by having the matter heard by a bench of three judges. Further, the lawyer said there are several cases being handled by different judges, who might arrive at different verdicts and embarrass the court.

Justice Mabeya will rule on the application on Wednesday.